Opinion
October 2, 1998
Appeal from the Supreme Court, Erie County, Gorski, J. — EDPL.
Present — Denman, P. J., Green, Pigott, Jr., Callahan and Boehm, JJ.
Order unanimously affirmed with costs to claimants. Memorandum: In 1989, claimants purchased 10.636 acres on Seneca Creek Road in the Town of West Seneca for $95,000. The property is split-zoned. The front portion of the property, consisting of 1.264 acres with 195 feet of road frontage, is zoned residential. Upon it is a single-family dwelling, a detached 2 1/2-car garage and a barn used for stabling horses. Claimants put a new roof on the barn, made cosmetic improvements inside the house and erected a fence behind the barn for use as a corral. The rear portion of the property, consisting of 9.372 acres, is zoned industrial.
On May 15, 1992, petitioner, Erie County Industrial Development Agency (ECIDA), acquired through condemnation approximately 450 acres of property, including 8.14 acres of the industrial portion of claimants' property, for the development of an industrial park. Claimants retained ownership of the front 1.264-acre portion and 1.232 acres of the industrial portion.
After the taking ECIDA made an advance payment to claimants, who then filed a claim seeking additional compensation. Supreme Court appointed a Referee to hear and report. After trial, the Referee determined that the value of the condemned property was $57,364.29. The court denied the motions of ECIDA and claimants to reject the Referee's report and confirmed the report. ECIDA appeals and claimants cross-appeal.
The Referee properly determined that ECIDA's appraisal report was fatally defective because it failed to set forth the value of the entire property before the taking and the value of the remaining property after the taking ( see, Matter of Town of Brookhaven v. Gold, 89 A.D.2d 963). When there is a partial taking of land, damages are measured "by finding the difference between the fair market value of the whole before the taking and the fair market value of the remainder after the taking" ( Acme Theatres v. State of New York, 26 N.Y.2d 385, 388; see, McDonald v. State of New York, 42 N.Y.2d 900). We reject the contention of ECIDA that the Referee abused her discretion in denying the request of ECIDA, made for the first time during trial, to amend or supplement its appraisal. Once a trial commences, "proof of `extraordinary circumstances' warranting the grant of leave to serve a supplemental appraisal" must be shown ( Salesian Socy. v. Village of Ellenville, 98 A.D.2d 927, 928; cf., 22 NYCRR 202.59 [h]), and ECIDA failed to meet that burden.
The award to claimants was supported by the evidence and adequately explained ( see, Matter of City of New York [Reiss], 55 N.Y.2d 885, 886; Matter of County of Dutchess v. Dutchess County Indus. Dev. Agency, 213 A.D.2d 635). In determining the value of the condemned parcel, the Referee properly relied as a comparable upon a recent sale of a similar property on the same road; that property was one of the parcels partially acquired in the condemnation proceeding ( see, Thompson v. Erie County Indus. Dev. Agency, 251 A.D.2d 1028). The weight accorded by the Referee to claimants' appraisal was not an abuse of discretion ( see, Matter of City of New York [Nassau Expressway], 98 A.D.2d 166, 190-191; Houle Co. v. State of New York, 73 A.D.2d 794, 795; Matter of City of Rochester v. BSF Realty, 59 A.D.2d 1035, 1036).
We have examined ECIDA's remaining contentions and conclude that they are without merit.